Green bud, grey area: Medical cannabis consumers buy products directly from licensed producers, but they must pay for it out of pocket – sometimes to the tune of hundreds of dollars a month.

Medical cannabis generally isn’t covered by third-party health insurance plans because it doesn’t have a drug identification number (DIN), a regulatory stamp of approval issued by Health Canada. Sun Life became the country’s first major insurance company to offer optional coverage for medical cannabis in 2018, while Manulife also launched optional coverage for participating individual and group plans in partnership with Shoppers Drug Mart. A handful of employers may offer some type of coverage through their employee group benefit plans, but for many consumers, the only opportunity for financial relief comes through the taxman.

The Canada Revenue Agency (CRA) allows for cannabis purchased under prescription to be claimed as a “medical expense” deduction on your federal income taxes. Here’s how it works:

Who qualifies to claim medical cannabis?
Anyone with a prescription from an authorized medical practitioner to purchase cannabis from a licensed producer. Producers are legally required to issue receipts, which you’ll need come tax filing time. Hold on to the paper copies, or find out how to access your receipts online. In case of an audit or review, the CRA recommends keeping receipts for six years.

What can you claim?
The amount paid for fresh or dried cannabis, cannabis oils, and cannabis seeds and plants procured from a licensed producer – basically, product only. You cannot claim costs related to growing or accessories such as lights, containers and other storage, fertilizers, vaporizers, pipes, capsules, or capsule filler machines.

How do you file?
Check your receipts and tally up the amount you spent on medical cannabis, and add the total to any other allowable medical expenses you plan to claim on your T1 Income Tax and Benefit Return, the most basic form filed by individual Canadians to complete their income tax return. If your return is prepared by a professional, submit your receipts to them. If you use tax software to complete your return, you’ll be prompted to enter your medical expenses in the deductions and credits section.

Medical expenses don’t have to be calculated by the calendar year, but by any 12-month period ending in the current tax year (2018). If you already claimed these expenses on your last tax return, you can’t claim them again.

What gets deducted?
Your total eligible medical expenses minus the lesser of $2,302, or 3% of your net income (your income after taxes). Depending on how much you make and amount of medical expenses claimed, the threshold can be high. Here are two examples using different incomes and the same $2,500 in medical expenses:

If your net income is $70,000, you must deduct $2,100 from your total medical expenses. You will receive a credit of $400.
If your net income is $30,000, you must deduct $900 from your total medical expenses. You will receive a credit of $1,600.
Each province and territory has different tax laws and policies, but you only have to submit one return through the CRA. Except for Quebec, all provinces and territories let the federal government collect income taxes and administer the returns. Quebec residents file both a provincial income tax return with Revenu Québec and a federal return with the CRA.

The deadline to file your income tax return for the 2018 year is April 30, 2019, or by June 17 if you’re self-employed.

“(Dr. Ian) Mitchell, who is participating in a randomized controlled study on the effects of cannabis on patients with post-traumatic stress syndrome, said a lot of what is known about the harms of marijuana also comes from observational data.

He also noted randomized controlled studies examining the benefits of marijuana have been suppressed for decades due to a research blockade in the U.S.”

As recreational cannabis legalization draws closer, some companies are missing the mark when it comes to employer training.

Last Friday, the Greater Vancouver Board of Trade hosted ‘Cannabis in the Workplace’—a discussion to address employer concerns regarding the changes to federal and provincial laws.

With a two-hour time limit, the event set out to answer the not-so-simple question: “What do employers need to be considering and how do they need to be preparing now for legal cannabis and the workplace?”

It’s important to note that while medical cannabis has been legal for nearly two decades, the number of Canadians now registered in the federal program has shot up to over 230,000, leaving employers scrambling to update their policies and educate supervisors.

Barring a few pot quips and iterations of uncertainty, the conference fell dramatically short of providing much clarity. What could have been an opportunity to outline cannabis-specific policy changes and accommodations for employees with medical prescriptions, dissolved quickly into a vague Q & A period urging employers to turn their focus toward risk mitigation and potential lawsuits.

To clarify the details, keynote speaker Solicitor General Mike Farnworth opened the luncheon with a bullet point overview of the new regulatory framework, in which he made it very clear that there will be zero tolerance for impairment in the workplace. “Employees have a duty to come to work sober and nothing about cannabis legalization will change that,” he said. The term ‘impairment’ stuck and dictated the conversation throughout the remaining panel discussion.

Right out of the gate, Dave Earle, CEO of the B.C. Trucking Association, reaffirmed employer attention needs to stay on the issue of cannabis abuse in the workplace. “For employers that don’t believe you have a substance use issue in your workplace, I’m going to break it to you…you do,” he said.

While impairment is absolutely a pressing concern, especially in safety sensitive work environments, most of the policies the panel went on to address already exist to tackle substances like alcohol or prescription medication, even cannabis.

Taking on the human rights angle, Cindy Zheng, a lawyer with McQuarrie Hunter LLP, warned employers of potential violations where underlying medical conditions exist. It seemed the conversation was about to take the right turn, but after continuously linking cannabis with cocaine and alcohol, however, she failed to specifically address what it means to accommodate up to the point of undue hardship—the threshold set by the B.C. Human Rights Legislation.

Zheng went on to suggest employers fall back on existing alcohol and tobacco policies, until, that is, they run into discrepancies.

“We would recommend an outright prohibition on site,” she says. Later adding, “if there is a distinction, and I’m not saying there should be, but if there is, make sure you have an articulate and reasonable basis for that distinct treatment of cannabis.”

Excluding the fundamental distinction that should be made from a medical standpoint, the number of reasons to encourage employers to understand the difference between alcohol and cannabis are seemingly endless. Let’s start with addiction rates, behavioural tendencies and overall health implications, and see if we can find a “reasonable basis” somewhere in there.

Mike Kilgallin, a partner at Rober Greyell LLP, urged employers use their own judgement when it comes to swift action, or at least until science provides a more suitable alternative.

“While we may not be able to definitively prove somebody is impaired, we want to say “there is a risk” and we want to remove [that individual] from the workplace,” says Kilgallin.

“There are going to be a lot of level-headed employees who are going to understand [expectations] and who are going to not turn the lunch room into a hotbox,” Kilgallin added. “Focus on the small few, the ones who create problems.”

It wasn’t made clear if the trouble-makers he was referring to included medical cannabis patients or just potheads who now felt empowered by the new legislation to get stoned mid-shift. One would assume the latter, but since there was hardly any reference throughout the entire conversation to dealing with medical users, it was hard to tell.

One quick-fix posed by the panelists was the integration of a self-disclosure policy. Employees would be encouraged to go on record with their addiction and dependency issues in order to protect themselves and the company. The idea here is that if the issue is not disclosed pre-incident, they would not be entitled to safeguards like rehabilitation and graduated reintegration programs.

CEO of the Medical Cannabis Resource Centre Inc., Terry Roycroft, suggests this policy, made infamous by a lawsuit won by Elk Valley Coal in Alberta last year, won’t do much when it comes to cannabis. “That would be a very difficult thing to ask,” says Roycroft. “Most people aren’t going to consider even high recreational use an addiction.”

Roycroft, who is now in the process of helping several patients apply for cannabis coverage under their workplace medical insurance, says that companies have several options to work with their employees.

“There are products that can be prescribed by a doctor that will not get them impaired,” says Roycroft. Going one step further, one of the areas MCRCI specializes in is creating specific healthcare programs for individuals based on their condition and day-to-day demands. “We can work with their HR departments […] and make recommendations of when they could use psychoactive THC and when they would be safe to go back to work or safe to drive after that usage.”

Unfortunately, it seems some companies still have a long way to go before understanding the dire need to work with their employees in this new cannabis-friendly country. “Medical marijuana is just another substance,” said Earle. “You have to treat it like any other substance.” If that’s the level from which employers are to start their education, it will be a long and treacherous journey to a new workplace culture.

Yes, You Need a Prescription for Medical Marijuana At Work and This Controversial Logging Case Proves Why

Although there is little case law on medical cannabis use in the Canadian workplace, there are a few cases that can guide both employees and employers on this topic.

Last week, we looked at the case of a man who was fired for using marijuana to relieve back pain and migraine headaches. Today we will examine the case of French vs. Selkin Logging.

In 2014, John French was an equipment operator for Selkin Logging in northern British Columbia and used cannabis to treat pain from cancer. He had spoken with his doctor about cannabis as a treatment but did not have a valid medical cannabis prescription. French was caught smoking cannabis at work and Selkin Logging enacted their zero tolerance drug policy requiring he stop consuming cannabis in the workplace. French was subsequently terminated for breach of this policy.

The British Columbia Human Rights Tribunal found that Selkin Logging was enacting the drug policy on the appropriate grounds – that an impaired equipment operator in the logging sector could be a serious safety risk. However, the Tribunal cautioned against zero tolerance drug policies saying “strict application of the zero tolerance rule, without consideration of accommodation, may offend the Code in circumstances where the individual may be legitimately using marijuana for medical purposes.”

Although the Tribunal found that the drug policy was enacted in good faith, they also stated that French’s termination was discriminatory because he was fired for using cannabis to alleviate the pain of a disability.

In the end, the termination was upheld because French did not hold a valid medical cannabis prescription.
What went wrong?

In the absence of a medical marijuana prescription, French was using cannabis illegally. He had talked with his doctor about using it to treat the symptoms of his cancer, but the doctor had not prescribed it or condoned its use at work. Human Rights legislation does not extend to requiring an employer to accommodate illegal drug use.
Takeaways

Employers that have a zero tolerance drug policy that does not address accommodation for medical cannabis may breach human rights legislation. Employees must have a valid cannabis prescription to be protected by Human Rights legislation. Employers are not required to accommodate illegal cannabis use.

This article was originally published on Civilized. View it here. January 20, 2016